**Exhibit10.kkk**

 

 

| (NOTE: |   | THIS TABLE OF CONTENTS IS NOT PART OF THE  CINERGY CORP. EXCESS PENSION PLAN; INSTEAD, THIS TABLE OF CONTENTS IS MERELY  FOR CONVENIENCE OF REFERENCE.) |
|--------|--------|---------------------------------------------------------------------------------------------------------------------------------------------------------|

 

##### TABLE OF CONTENTS

 
| INTRODUCTION |                                          |
|--------------|-----------------------------------------------|
|         |                                          |   |
| ARTICLE 1    | DEFINITIONS                                   |   |
|         |                                          |   |
| ARTICLE 2    | EFFECTIVE DATE OF PLAN                        |   |
|         |                                          |   |
| ARTICLE 3    | ELIGIBILITY AND  PARTICIPATION                |   |
|         |                                          |   |
| ARTICLE 4    | BENEFITS                                      |   |
|         |                                          |   |
| ARTICLE 5    | SPOUSE’S BENEFIT                         |   |
| 5.1          | Determination of  Spouse’s Benefit       |   |
| 5.2          | Method of Payment  of Spouse’s Benefit   |   |
|         |                                          |   |
| ARTICLE 6    | MANNER OF PAYMENT                             |   |
| 6.1          | Form of Payment                               |   |
| 6.2          | Timing of  Payment                            |   |
| 6.3          | Method of  Payments                           |   |
| 6.4          | Small Benefits                                |   |
| 6.5          | Facility  of Payment                          |   |
|         |                                          |   |
| ARTICLE 7    | NONALIENATION OF BENEFITS                     |   |
|         |                                          |   |
| ARTICLE 8    | ADMINISTRATION                                |   |
| 8.1          | Administrator                                 |   |
| 8.2          | Removal  and Replacement of Committee Members |   |
| 8.3          | Disqualification and  Resignation             |   |
| 8.4          | Chairperson,  Services, and Counsel           |   |
| 8.5          | Meetings                                      |   |
| 8.6          | Quorum                                        |   |
| 8.7          | Action Without Meeting                        |   |
| 8.8          | Correction of Defects                         |   |
| 8.9          | Reliance Upon Legal Counsel                   |   |
| 8.10         | Expenses                                      |   |
| 8.11         | Indemnification                               |   |
| 8.12         | Powers and Duties of Committee                |   |

 

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| ARTICLE 9  | BENEFIT CLAIMS PROCEDURES                          |   |
|------------|----------------------------------------------------|--------|
|       |                                               |   |
| ARTICLE 10 | FUNDING POLICY AND METHOD                          |   |
|       |                                               |   |
| ARTICLE 11 | CONTRIBUTIONS                                      |   |
|       |                                               |   |
| ARTICLE 12 | MISCELLANEOUS                                      |   |
| 12.1       | No Enlargement of Employee Benefits                |   |
| 12.2       | Notice of Address                                  |   |
| 12.3       | Data                                               |   |
| 12.4       | No  Individual Liability                           |   |
| 12.5       | Governing Laws                                     |   |
| 12.6       | Severability                                       |   |
| 12.7       | Interpretation  and Regulation of Plan             |   |
| 12.8       | Communication by  Participants                     |   |
| 12.9       | Headings                                           |   |
|       |                                               |   |
| ARTICLE 13 | CONTINUED APPROVAL OF  CINERGY’S PENSION PLAN |   |
|       |                                               |   |
| ARTICLE 14 | AMENDMENT AND TERMINATION                          |   |
| 14.1       | Authority to Amend                                 |   |
| 14.2       | Merger,  Consolidation, or Change in Control  |   |
|       |                                               |   |
| ARTICLE 15 | PARTICIPATION BY OTHER  EMPLOYERS                  |   |
| 15.1       | Adoption of the Plan                               |   |
| 15.2       | Withdrawal from  Participation                     |   |
| 15.3       | Cinergy as Agent for Employers                     |   |
|       |                                               |   |
| ARTICLE 16 | CONTINUANCE BY A SUCCESSOR                         |   |

 

-ii-

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**Adopted by the Board of Directors**

 

**CINERGY CORP.**

#### **EXCESSPENSION PLAN**

#### ** **

(As Amended and RestatedEffective January 1, 1998)

 

# **INTRODUCTION**

 

Effective January 1, 1986, PSIEnergy, Inc. (formerly Public Service Company of Indiana, Inc. (“PSI”), adoptedan excess benefit plan intended to provide to employees benefits that wereabove the level of benefits available under PSI’s qualified pension plan.  This plan was originally named the “PSIEnergy, Inc. Supplemental Pension Plan.” Effective January 1, 1989, the Plan was restated and renamed the “PSIEnergy, Inc. Excess Benefit Plan.”

 

As a result of a corporatereorganization and merger that became effective October 24, 1994 (the“Merger”), PSI and The Cincinnati Gas & Electric Company (“CG&E”)became wholly-owned subsidiaries of Cinergy Corp. (“Cinergy”), a public utilityholding company under the Public Utility Holding Company Act of 1935.  Effective January 1, 1997, the PSI Energy,Inc. Excess Benefit Plan was renamed the “Cinergy Corp. Excess Pension Plan”(the “Plan”), and the Plan became applicable to Cinergy and any employer (asdefined in the Plan) that adopts the Plan with the consent of Cinergy.  PSI became a participating employer effectiveJanuary 1, 1986.  CG&E, Union Light,Heat & Power Company, and Lawrenceburg Gas Company became participatingemployers effective January 1, 1997, and Cinergy Resources, Inc., CinergyServices, Inc., Cinergy Capital & Trading, Inc., and Cinergy Solutions,Inc. became participating employers effective January 1, 1998.

 

The purpose of the Plan is to restorebenefits earned, but not available, to certain Employees because of certainlegal limits imposed on qualified retirement plan benefits by the Code.  The Plan is a nonqualified plan.

 

This document is a continuation ofand complete restatement of the Plan. The Plan, as effective January 1, 1998, is set forth in its entirety.

 

 

# **ARTICLE 1**

# **DEFINITIONS**

 

As used in the document, thefollowing words and phrases, when capitalized, will have the meanings set forthbelow, unless a different meaning is plainly required by the context:

 

1.1                                 “ActuarialEquivalent” means “Actuarial Equivalent” as defined in Cinergy’s Pension Plan.

 

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1.2                                 “Affiliate”means any employer that together with an Employer is under common control or amember of an affiliated service group as determined under Code subsections414(b), (c), (m) and (o).

 

1.3                                 “Beneficiary”means, with respect to each Participant, the person or persons who are entitledto receive benefits under the Plan after the Participant’s death.

 

1.4                                 “Boardof Directors” means the duly constituted board of directors of Cinergy on theapplicable date.

 

1.5                                 “Changein Control” means “Change in Control” as defined in Cinergy’s Pension Plan.

 

1.6                                 “Cinergy”means Cinergy Corp., a Delaware corporation, and any corporation that succeedsto its business and adopts the Plan.

 

1.7                                 “Cinergy’sPension Plan” means the Code qualified pension plan known as the “Cinergy Corp.Non-Union Employees’ Pension Plan,” as amended from time to time.

 

1.8                                 “Claimant”means a person submitting a claim for benefits under the Plan.

 

1.9                                 “Code”means the Internal Revenue Code of 1986, as amended from time to time, andinterpretive rulings and regulations.

 

1.10                           “Committee”means the benefits committee established pursuant to Article 8 (Administration)to serve as administrator of the Plan.

 

1.11                           “ContingentAnnuitant” means, with respect to any Participant electing a contingent pensionoption under Cinergy’s Pension Plan, the person designated by the Participantto receive a contingent pension after the Participant’s death.

 

1.12                           “Employee”means any person employed by an Employer.

 

1.13                           “Employer”means Cinergy and any Affiliate which, with the consent of the Board ofDirectors, elects to participate in the Plan pursuant to Section 15.1 (Adoptionof Plan) and any successor corporation or other organization or entity thatadopts the Plan pursuant to Article 16 (Continuance by a Successor).  If an Affiliate withdraws from participationin the Plan pursuant to Section 15.2 (Withdrawal from Participation), thatAffiliate will cease to be an Employer.

 

1.14                           “Insolvent”means, with respect to Cinergy, Cinergy being unable to pay its debts as theyare due, or Cinergy being subject to a pending proceeding as a debtor under theUnited States Bankruptcy Code.

 

1.15                           “MaximumBenefit” means the monthly equivalent of the maximum benefit permitted afterapplying Code subsections 415(b) and (e) and Code paragraph 401(a)(17) payableto a Participant under Cinergy’s Pension Plan.

 

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1.16                           “Participant”means any Employee who has met the eligibility requirements set forth inArticle 3 (Eligibility and Participation) and for whom benefits are to beprovided under the Plan.

 

1.17                           “Plan”means the unfunded excess pension plan known as the “Cinergy Corp. ExcessPension Plan,” as amended from time to time. Effective January 1, 1998, this document sets forth the Plan.

 

1.18                           “PlanYear” means the calendar year.

 

1.19                           “RabbiTrust” means the grantor trust that Cinergy, in its sole discretion, mayestablish pursuant to Article 10 (Funding Policy and Method) for the deposit offunds to be used for the exclusive purpose of paying benefits accrued under thePlan, subject to the claims of Cinergy’s general creditors in the event Cinergybecomes Insolvent.

 

1.20                           “RetirementDate” means, with respect to any Participant, the same date as theParticipant’s “normal retirement date,” “early retirement date,” or “severancefrom service date” (as those terms are defined in Cinergy’s Pension Plan),whichever is applicable to the Participant, under Cinergy’s Pension Plan.

 

1.21                           “Spouse”means, with respect to any Participant, the Participant’s lawfully marriedSpouse, if any, on the applicable date. The Plan will not recognize common law marriages or similar arrangementsunless required to do so by federal law.

 

1.22                           “UnrestrictedBenefit” means, with respect to any Participant, the monthly equivalent of thebenefit to which the Participant would have been entitled under Cinergy’sPension Plan, if that benefit had been determined without regard to thelimitations imposed on qualified retirement plan benefits under Codesubsections 415(b) and (e), and the limitation imposed on qualified retirementplan compensation under Code paragraph 401(a)(17).

 

The uses of singular and masculine words are forpractical purposes only and will be deemed to include the plural and feminine,respectively, unless the context plainly indicates a distinction.  Certain other definitions, as required,appear in the following Articles of the Plan.

 

 

# **ARTICLE 2**

# **EFFECTIVE DATE OF PLAN**

 

The effective date of this restatedPlan is January 1, 1998, as to Cinergy and will be effective with respect toany other Employer as of the date that Employer elects to participate in thePlan pursuant to Article 15 (Participation by Other Employers).

 

This restated Plan applies only toEmployees who are credited with at least one “hour of service” (as defined inCinergy’s Pension Plan) on or after January 1, 1998.  This restated Plan will not affect the rights of formerParticipants (and their Beneficiaries) who retired, died, or

 

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otherwise terminated their employment with an Employerprior to January 1, 1998.  The rights,if any, of those former Participants (and their Beneficiaries), and the amountof their benefits, if any, will be governed by the Plan’s provisions as thesame were in effect prior to January 1, 1998.

 

 

# **ARTICLE 3**

# **ELIGIBILITY AND PARTICIPATION**

 

Any Employee who is a participant inCinergy’s Pension Plan on or after January 1, 1986, and whose UnrestrictedBenefit would exceed his Maximum Benefit, is eligible to participate in thePlan.

 

 

# **ARTICLE 4**

# **BENEFITS**

 

Upon a Participant’s Retirement Date,the Participant will be entitled to a monthly benefit under this Plan that isequal in amount to the difference between his Unrestricted Benefit and hisMaximum Benefit.  The benefit payableunder this Plan will be calculated after the Participant’s benefits payableunder Cinergy’s Pension Plan are calculated, but before benefits payable underCinergy’s supplemental executive retirement plan known as the “Cinergy Corp.Supplemental Executive Retirement Plan,” as amended from time to time, arecalculated.

 

 

# **ARTICLE 5**

# **SPOUSE’S BENEFIT**

 

5.1                                 Determination of Spouse’s Benefit

 

Upon a Participant’s death, if his Spouse is entitledto receive a Spouse’s benefit under Article 6 of Cinergy’s Pension Plan, hisSpouse will be entitled to receive an annual benefit under this Plan that isequal to the amount the Participant would have received under Article 4(Benefits).

 

5.2                                 Method of Payment of Spouse’s Benefit

 

Any excess pension benefits payable under this Articleto a Spouse will be payable in equal monthly installments, each installmentbeing equal to 1/12th of the annul amount as determined pursuant to thisArticle.  If at the date of his death aParticipant had reached age 50, the first monthly installment will be payableto the Participant’s Spouse on the first day of the calendar month coincidentwith or following the date of the Participant’s death, if his Spouse is thenliving.  If at the date of his death theParticipant had not reached age 50, the first monthly installment will bepayable to the Participant’s Spouse on the first day of the calendar monthcoincident with or following the date the Participant would have reached age50, had he survived until that date if his Spouse is then living.  In either event, subsequent monthlyinstallments will

 

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be payable on the first day ofeach month and will cease upon the payment of the installment due on the firstday of the calendar month in which the Spouse dies.

 

 

# **ARTICLE 6**

# **MANNER OF PAYMENT**

 

## **6.1**                                 Form of Payment

 

The form of an excess pension payable under the Planto a Participant will be the same form in which the pension is payable to theParticipant under Article 7 of Cinergy’s Pension Plan.

 

## **6.2**                                 Timing of Payment

 

The payment of a Participant’s excess pension benefitsunder this Plan will begin as of the same date his benefits under Cinergy’sPension Plan begin.

 

## **6.3**                                 Method of Payments

 

The method of payment of an excess pension payable toa Participant under the Plan will be the same method of payment applicable tothe Participant under Article 8 of Cinergy’s Pension Plan.

 

## **6.4**                                 Small Benefits

 

Notwithstanding any other provision of the Plan, wherethe Actuarial Equivalent present value of a Participant’s or Spouse’s excesspension payable under this Plan does not exceed $5,000, the Committee or itsdesignee will pay the excess pension in a single-sum cash payment equal to theActuarial Equivalent of the excess pension otherwise payable.

 

## **6.5**                                 Facility of Payment

 

If any benefit under the Plan is payableto a person whom the Committee knows is a minor or otherwise under legalincapacity, the Committee or its designee may have the payment made to thelegal guardian of that person or to the person or organization as a court ofcompetent jurisdiction may direct.  Tothe extent permitted by law, any payment under this Section will be a completedischarge of any liability under the Plan to that person.

 

 

# **ARTICLE 7**

# **NONALIENATION OF BENEFITS**

 

The Plan will not in any manner beliable for, or subject to, the debts or liabilities of any Participant,Beneficiary, Contingent Annuitant, Spouse, or any other person entitled to anyPlan benefit.  No Payee may assign anypayment due him under the Plan.  Nopension or other

 

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benefits at any time payable under the Plan will besubject in any manner to anticipation, alienation, sale, transfer, assignment,pledge, attachment, garnishment, levy, execution, or other legal or equitableprocess, or encumbrance of any kind. Any attempt to alienate, sell, transfer, assign, or otherwise encumberany such benefit, whether presently or thereafter payable, will be void.

 

 

# **ARTICLE 8**

# **ADMINISTRATION**

 

## **8.1**                                 Administrator

 

The Benefits Committee will be the administrator ofthe Plan.  The Committee will consist ofthe number of members, not fewer than three, that is specified from time totime by the Board of Directors or its designee.  All members of the Committee will be employees or officers of anEmployer.  All members of the Committeewill serve without compensation.

 

## **8.2**                                 Removaland Replacement of Committee Members

 

The members of the Committee willserve at the pleasure of the Board of Directors and may be removed by the Boardof Directors with or without cause.  Anyvacancy among the members will be filled by the Board of Directors or itsdesignee.

 

## **8.3**                                 Disqualificationand Resignation

 

On the date when a Committee memberis neither an Employee nor an officer of an Employer, he will be disqualifiedfrom membership on the Committee.  Amember of the Committee may resign by delivering his written resignation to anyother member of the Committee.  Aresignation will become effective on the date specified in the instrument ofresignation.

 

## **8.4**                                 Chairperson,Services, and Counsel

 

The members of the Committee will elect one of theirmembers as Chairperson and will elect a Secretary, who may be, but need not be,one of the members of the Committee. Cinergy will provide the Committee, at Cinergy’s expense, with suchclerical, accounting, actuarial, and other services as may be reasonablyrequired by the Committee in carrying out its responsibilities.  The Committee may employ counsel, who maybe, but need not be, counsel to Cinergy.

 

## **8.5**                                 Meetings

 

The Committee will hold meetings uponsuch notice, at the places, and at the times as the Committee may from time totime determine.

 

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## **8.6**                                 Quorum

 

A majority of the members of theCommittee at the time holding office will constitute a quorum for thetransaction of business.  Allresolutions and other action taken by the Committee at any meeting will be bythe vote of the majority of the members of the Committee present at themeeting.

 

## **8.7**                                 Action Without Meeting

 

Any decision, order, direction, or otheraction made in writing signed by a majority of the members of the Committee atthe time holding office will constitute valid and effective action of theCommittee, whether or not the matter to which that decision, order, directions,or other action pertains had already been acted upon at a duly called and heldmeeting of the Committee.

 

## **8.8**                                 Correction of Defects

 

The Committee may correct any defector supply any omission or reconcile any error or inconsistency in its previousproceedings, decisions, orders, directions, or other actions in the manner andto the extent as it deems advisable to carry out the Plan’s purposes.

 

## **8.9**                                 Reliance Upon Legal Counsel

 

The members of the Committee, andCinergy and its officers and directors, will be entitled to rely upon allopinions given by legal counsel selected by the Committee.

 

## **8.10**                           Expenses

 

In the performance of its duties, theCommittee is authorized to incur reasonable expenses, including counsel fees,which will be paid by Employers.

 

## **8.11**                           Indemnification

 

Cinergy agrees to indemnify and holdharmless each member of the Committee against any cost, expenses, or liability(including any sum paid in settlement of any claim with the approval of theBoard of Directors) arising out of any act or omission to act as a member ofthe Committee, except only acts and omissions representing willful misconduct,fraud, or lack of good faith.

 

## **8.12**                           Powers and Duties of Committee

 

Subject to the specific limitations stated in thisdocument, the Committee will have the following powers, duties, andresponsibilities.

 

(a)                                  tocarry out the Plan’s general administration;

 

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(b)                                 tocause to be prepared all forms necessary or appropriate for the Plan’sadministration;

 

(c)                                  tokeep appropriate books and records, including minutes of the Committee’smeetings;

 

(d)                                 togive directions as to the amounts to be disbursed to Participant and othersunder the Plan’s provisions;

 

(e)                                  todetermine, with discretionary authority and consistent with the provisions ofthis document, all questions of the eligibility, rights, and status ofParticipants and others under the Plan;

 

(f)                                    toexercise all other powers and duties specifically conferred upon the Committeeelsewhere in this document;

 

(g)                                 tointerpret, with discretionary authority, the provisions of the Plan and toresolve, with discretionary authority, all disputed questions of Planinterpretation and benefit eligibility; and

 

(h)                                 toemploy agents to assist it in performing its administrative duties.

 

The Committee will at all times make similar decisionson similar questions involving similar circumstances.  Subject to the provisions of Article 9 (Benefit ClaimsProcedures), all decisions of the Committee made in good faith on all matterswithin the scope of its authority under the provisions of this document will befinal and binding upon all persons.

 

 

# **ARTICLE 9**

# **BENEFIT CLAIMS PROCEDURES**

 

Claims for benefits under the Planwill be made in writing to the Committee or its designee.  If a claim for benefits is wholly orpartially denied, the Committee or its designee will notify the Claimant of theclaim’s denial within a reasonable period of time.  The Committee or its designee is authorized to develop more fullythe Plan’s benefit claims procedures by establishing from time to time variousrules and procedures.

 

Within 60 days after the Claimant’sreceipt of written notice of the claim’s denial, the Claimant, or his dulyauthorized representative, may file a written request with the Committee requestinga full and fair review of the denial of the Claimant’s claim for benefits.  In connection with the Claimant’s appeal ofthe denial of his claim for benefits, the Claimant may review pertinentdocuments in the Committee’s possession and may submit issues and comments inwriting.  The Committee will make adecision on review promptly after receipt of the Claimant’s request forreview.  The decision on review will bein writing and written in a manner calculated to be understood by the Claimant,and will set forth the specific reason or reasons for the decision and willcontain a specific reference to the pertinent Plan provisions on which the

 

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decision is based. If the decision on review is not furnished to the Claimant within 60days of receipt of the request for review, the claim will be deemed denied onreview.

 

 

# **ARTICLE 10**

# **FUNDING POLICY AND METHOD**

 

The Plan will be totally unfunded, sothat the Employer’s obligation to pay benefits under the Plan is merely acontractual duty to make payments when due under the Plan.  The Employer’s promise to pay benefits underthe Plan will be unsecured, will be paid out of the Employer’s general assetsand, except as provided in the following Paragraph, Cinergy will not set asideor segregate assets for the purpose of paying benefits under the Plan.

 

Notwithstanding the precedingparagraph, Cinergy, in its sole discretion, may establish a Rabbi Trust.  The Employer, in its sole discretion, maymake such contributions to the Rabbi Trust as the Committee determines areappropriate to enable the Employer to pay benefits under the Plan.  Any Rabbi Trust established under thisArticle will be created pursuant to a written trust document that substantiallyconforms to the model form of rabbi trust agreement approved by the InternalRevenue Service in Revenue Procedure 92-64 (as amended from time to time).

 

 

# **ARTICLE 11**

# **CONTRIBUTIONS**

 

No contributions to the Plan byParticipants will be required or permitted under the Plan.

 

During the continuance of the Planand for purposes of providing the benefits contemplated under the Plan, eachEmployer intends to pay out of its general assets, from time to time, thosesums of money which the Committee deems sufficient to provide the benefitsunder the Plan.

 

 

# **ARTICLE 12**

# **MISCELLANEOUS**

 

## **12.1**                           No Enlargement of Employee Benefits

 

This Plan is strictly a voluntary undertaking on thepart of each Employer and will not be deemed to constitute a contract betweenthe Employer and any Employee or to be consideration for, or an inducement to,or a condition of, the employment of any Employee.  Nothing contained in the Plan will be deemed to give any Employeethe right to be retained in the service of any Employer or to interfere withthe right of any Employer to discharge any Employee at any time.  No person will have any right to benefitsexcept to the extent provided in the Plan.

 

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## **12.2**                           Notice of Address

 

Each Participant, former Participant,Beneficiary, Contingent Annuitant, and Spouse entitled to benefits under thePlan must submit to the Committee or its designee his post office address andeach change of post office address.  Anycommunication, statement or notice addressed to a person at his latest postoffice address as filed with the Committee or its designee will, upon depositin the United States mail with postage prepaid, be binding upon that person forall Plan purposes, and the Committee will not be obligated to search for, or toascertain the whereabouts of, any person, except as otherwise required by law.

 

## **12.3**                           Data

 

Participants, former Participants,Beneficiaries, Contingent Annuitants, and Spouses must furnish to the Committeeor its designee any documents, evidence, or information that the Committeeconsiders necessary or desirable for the purpose of administering the Plan, orto protect the Committee; and it will be a condition of the Plan that eachperson must furnish this information promptly and sign required documents beforeany benefits become payable under the Plan.

 

## **12.4**                           No IndividualLiability

 

It is the express purpose andintention of the Plan that no individual liability whatever will attach to, orbe incurred by, the shareholders, officers, or members of the board of directorsof any Employer, or the Committee or its members, or any fiduciary designatedpursuant to Section 8.12 (Powers and Duties of Committee), or anyrepresentative appointed by Cinergy, under or by reason of any of the terms orconditions of the Plan.

 

## **12.5**                           Governing Laws

 

The Plan will be construed andadministered according to the internal laws of the State of Ohio to the extentthat those laws are not preempted by federal law.

 

## **12.6**                           Severability

 

If any part of the Plan is adjudgedby a court of competent jurisdiction to be contrary to the laws governing thePlan, then the Plan will, in all other respects, be and remain legallyeffective and binding to the full extent permissible under the law.

 

## **12.7**                           Interpretation and Regulation of Plan

 

Cinergy, by action of the Committee,reserves the right to interpret and regulate the Plan, by exercise ofdiscretionary authority, and its interpretation and regulations will be legallyeffective and binding on all parties concerned.

 

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## **12.8**                           Communication by Participants

 

All communications by Participants,former Participants and other concerned parties concerning the Plan must be inwriting and directed to Cinergy’s General Manager, Benefits, 1000 East MainStreet, Plainfield, Indiana 46168.

 

## **12.9**                           Headings

 

The headings of Articles, Sections,Subsections, and Paragraphs, or other parts of the Plan are for convenience ofreferences only and do not define, limit, construe, or otherwise affect thecontents of this document.

 

 

# **ARTICLE 13**

# **CONTINUED APPROVAL OF CINERGY’SPENSION PLAN**

 

The Plan, as set forth in thisdocument, is intended to provide retirement benefits supplemental to thoseprovided under Cinergy’s Pension Plan. The Plan’s implementation and continuance are expressly conditioned uponthe absence of any disqualifying effects of implementation and continuance uponCinergy’s Pension Plan under the Code. Any modification, amendment, or termination of the Plan may be made,retroactive or otherwise, as necessary or appropriate to maintain thequalification of Cinergy’s Pension Plan under the Code or to otherwise causeCinergy’s Pension Plan to comply with any applicable requirements of theEmployee Retirement Income Security Act of 1974, as amended from time to time.

 

 

# **ARTICLE 14**

# **AMENDMENT AND TERMINATION**

 

## **14.1**                           Authority to Amend

 

Cinergy, by resolution of the Boardof Directors or by any person or persons duly authorized by resolution byCinergy’s Board of Directors, will have the right, authority, and power to alter,amend, modify, revoke, or terminate the Plan, and Cinergy, by resolution of theBoard of Directors or by any person or persons duly authorized by resolution bythe Board of Directors, will also have the right, authority, and power toterminate the Plan and to discontinue or suspend the payment of benefits underthe Plan.

 

## **14.2**                           Merger, Consolidation, or Change in Control

 

If Cinergy should be reorganized bymerger, consolidation, transfer of assets, or otherwise, so that a corporation,partnership, or person shall succeed to all or substantially all of Cinergy’sbusiness, or a Change in Control occurs, then the obligations andresponsibilities of Cinergy under the Plan will be assumed by any successor,acquiring corporation, or controlling entity, and all of the rights,privileges, and benefits of the Participants under the Plan will continue.  Notwithstanding the provisions of Section14.1 (Authority to Amend), the provisions

 

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of this Section may not be amended by an amendment tothe Plan effective within three years of the occurrence of any of the eventsdescribed in the preceding sentence.

 

 

# **ARTICLE 15**

# **PARTICIPATION BY OTHER EMPLOYERS**

 

## **15.1**                           Adoption of the Plan

 

With Cinergy’s consent, any Affiliatemay become a participating Employer under the Plan by (a) taking any actionnecessary to adopt the Plan, (b) filing with Cinergy a duly certified copy ofthe Plan as adopted by the Affiliate, and (c) executing and delivering anydocuments and taking any other action as may be necessary or desirable to putthe Plan into effect with respect to that corporation or entity.

 

## **15.2**                           Withdrawal from Participation

 

Any Employer, may with Cinergy’sconsent, withdraw from participation in the Plan at any time by filing withCinergy a duly certified copy of a resolution of its board of directors to thateffect and giving notice of its intended withdrawal to Cinergy prior to theeffective date of withdrawal.

 

## **15.3**                           Cinergy as Agent for Employers

 

Each Affiliate that becomes aparticipating Employer pursuant to Section 15.1 (Adoption of the Plan) orArticle 16 (Continuance by a Successor) by so doing will be deemed to haveappointed Cinergy its agent to exercise on its behalf all of the powers andauthorities conferred upon Cinergy by the terms of the Plan, including, but notlimited to, the power to amend and terminate the Plan.  Each Employer must, from time to time, uponCinergy’s request, furnish to Cinergy any data and information as Cinergyrequires in the performance of its duties.

 

 

# **ARTICLE 16**

# **CONTINUANCE BY A SUCCESSOR**

 

If Cinergy or any other Employee isreorganized by way of merger, consolidation, transfer of assets, or otherwise,so that a corporation, partnership, or person other than an Employer succeedsto all or substantially all of an Employer’s business, the successor may besubstituted for the Employer under the Plan by adopting the Plan.  Benefit payments by the Employer will beautomatically suspended from the effective date of any reorganization until thedate upon which the substitution of the successor corporation for the Employerunder the Plan becomes effective.  If,within 90 days following the effective date of any reorganization, thesuccessor has not elected to become a party to the Plan, or if the Employeradopts a plan of complete liquidation other than in connection with areorganization, the Plan will be automatically terminated with respect toemployees of that Employer as of the close of business

 

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on the 90th day following the effective date of thereorganization or as of the close of business on the date of adoption of theplan of complete liquidation, as the case may be.

 

IN WITNESS WHEREOF, Cinergy Corp. hascaused this Plan document to be executed and approved by its duly authorizedofficers, effective as of January 1, 1998.

 
|                           |            |   |   |   |                                       |
|--------------------------------|-----------------|--------|--------|--------|--------------------------------------------|
|                           |            |   |   | BY:    | /s/   Madeleine W. Ludlow             |
|                           |            |   |   |   | Madeleine W. Ludlow                        |
|                           |            |   |   |   | Vice President and Chief Financial Officer |
|                           |            |   |   |   |                                       |
|                           |            |   |   |   |                                       |
|                           |            |   |   | Dated: | January 1, 1998                            |
|                           |            |   |   |   |                                       |
|                           |            |   |   |   |                                       |
| APPROVED:                      |            |   |   |   |                                       |
| /s/  Jerome  A. Vennemann |            |   |   |   |                                       |
| Jerome A. Vennemann            |            |   |   |   |                                       |
| Acting General Counsel and     |            |   |   |   |                                       |
| Assistant Corporate Secretary  |            |   |   |   |                                       |
|                           |            |   |   |   |                                       |
|                           |            |   |   |   |                                       |
| Dated:                         | January 1, 1998 |   |   |   |                                       |   |
|                                |                 |        |        |        |                                            |  |

 

13

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